******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Nextel Licensee Holdings 4, Inc. ) File Nos. C002983, C002984, C002986, ) C002994, C003002, C003006, C003007 Applications for New Specialized ) C003008, C003009, C003012, C003013, Mobile Radio System - Trunked ) and C003014 Stations in Maricopa County, Arizona ) ORDER Adopted: April 30, 1999 Released: April 30, 1999 By the Deputy Chief, Wireless Telecommunications Bureau: I. INTRODUCTION 1. On June 22, 1998, Dennis C. Brown and Robert H. Schwaninger, Jr. (Brown) filed a Petition to Dismiss or Deny (Petition) against Nextel License Holdings 4, Inc. (Nextel) on behalf of clients who operate 800 MHz Specialized Mobile Radio (SMR) systems in the Maricopa County, Arizona area. Brown contends that certain 800 MHz SMR applications filed by Nextel for stations in Maricopa County are defective and do not comply with the Commission's rules. In addition, Brown alleges that these applications contain misrepresentations of material facts that require the Commission to ascertain whether Nextel has the requisite character qualifications to be a Commission licensee. We dismiss the Petition for the reasons noted below. We also clarify the procedures to be used by incumbent 800 MHz SMR licensees filing notifications of new or modified station sites pursuant to Section 90.693 of the Commission's rules. II. BACKGROUND 2. On May 13, 1998, Nextel electronically filed twelve minor modification applications to provide SMR service on various frequencies in Maricopa County. The applications were filed pursuant to Section 90.693 of the rules, which allows incumbent 800 MHz licensees to add, remove, or modify transmitter sites within the composite 22 dBuV/m field strength contour of their existing systems by filing a notification of the modifications with the Commission within 30 days. Section 90.693 also requires that the modifications comply with the Commission's short-spacing rules, set forth in Sections 90.621(b)(4)-(6), which govern the permissible distance between co-channel systems to protect against interference. On June 18, 1998, Nextel voluntarily withdrew two of its twelve applications. On June 23, 1998, the Wireless Telecommunications Bureau (Bureau) granted nine of the ten remaining applications. 3. On June 22, 1998, Brown filed its petition seeking dismissal of all twelve Nextel applications. In the petition, Brown alleges that the Nextel applications did not comply with Section 90.693 because Nextel had no incumbent stations whose 22 dBu field strength contour could encompass Nextel's proposed new sites. In addition, Brown contends that some of Nextel's proposed station sites were improperly short-spaced in relation to stations licensed to Brown's clients, in violation of the short-spacing criteria in Section 90.621(b)(4) of the Rules. Brown asserts that Nextel's applications are therefore defective on their face and must be dismissed. Brown further requests that the Commission determine whether Nextel's filings raise a substantial question of fact as to whether Nextel has made knowing, willful, and repeated material misrepresentations to the Commission by certifying that the applications complied with Section 90.693. 4. On December 1, 1998, the Bureau requested that Nextel provide additional information regarding its Maricopa County applications. In response, Nextel acknowledged that it had incorrectly calculated its existing composite 22 dBu contour with respect to certain sites specified on the applications. Nextel stated that "[i]n preparing the contour maps based on current information from the Land Mobile Services database of the [FCC], Nextel discovered that a small percentage of the frequencies contained on all but one of the applications . . . exceeds Nextel's existing composite 22 dbu contour at the parameters requested. This technical mistake in the calculation of the composite contours resulted from the deletion of a number of frequencies from the prior data base used to initially calculate applicable contours." Based on these findings, Nextel surrendered the licenses for all 800 MHz stations that were previously granted to it in Maricopa County based on the same technical mistakes in contour calculations, and also withdrew its one remaining pending application in Maricopa County. Nextel further stated that it would resubmit applications based on current data, including short-spacing analysis and composite 22 dBu contours for each frequency, for all of the requested sites. III. DISCUSSION 5. Because the twelve applications that are the subject of Brown's petition have either been withdrawn or the licenses granted pursuant to those applications have been surrendered by Nextel, it is unnecessary for us to address the substantive allegations of Brown's petition to deny the applications. Therefore, we dismiss Brown's petition as moot. 6. We also reject Brown's claim that Nextel's certifications of compliance with Section 90.693 on its applications raise a substantial issue of material fact regarding whether Nextel has made intentional, willful, or repeated misrepresentations to the Commission. Section 90.693 states in part: "[i]ncumbent licensees are permitted to add, remove or modify transmitter sites within their original 22 dBuV/m field strength contour without prior notification to the Commission so long as their original 22 dBuV/m field strength is not expanded and the station complies with the Commission's short-spacing criteria in Sections 90.621(b)(4) through 90.621(b)(6)." Section 90.621(b)(4) in turn provides that a licensee may locate a station 110 km (70 miles) to 88 km (55 miles) from a co-channel licensee, provided that it complies with transmitter effective radiated power (ERP) and antenna height limitations set forth in the rule, and that it may locate a station less than 55 miles from a co-channel licensee, provided that it notifies all affected co-channel licensees and submits an engineering analysis showing that co-channel licensees will be protected from interference. We find that Nextel did violate these rules to the extent that it miscalculated the 22 dBu contours of its existing stations. We also find that in some instances, Nextel's applications specified sites that potentially violated the short- spacing provisions of Section 90.621(b) because they were located less than 70 miles from co-channel facilities licensed to Brown's clients. 7. After a careful review of the record before us, however, we find no basis to conclude that the errors in Nextel's filings constituted intentional, willful, or repeated misrepresentations. Nextel's miscalculations of 22 dBu contours and short-spacing distances in these applications, while not insignificant, were essentially technical in nature. Moreover, these errors occurred only in a limited group of applications relating to one geographic area -- Maricopa County, Arizona. Nextel has filed numerous notifications pursuant to Section 90.693 for facilities throughout the United States, and our review of other Nextel filings in other parts of the country reveals no similar contour errors or co-channel frequency problems. We also note that even before Brown filed its petition, Nextel voluntarily withdrew the two applications that contained the majority of technical errors and miscalculations identified in the petition. Nextel has also demonstrated a willingness to correct errors in its other applications once they were brought to its attention. In short, based on Nextel's actions with respect to the Maricopa County applications and our review of other SMR applications filed by Nextel, we find no evidence that Nextel has engaged in a pattern of misrepresentation or abuse of the Commission's processes. 8. In light of these facts, we find that the errors in Nextel's filings raise no substantial or material question of fact that warrant formal investigation. Nevertheless, we admonish Nextel to review more carefully the engineering and technical data in all future applications filed with the Commission to ensure that similar errors do not occur. 9. Finally, we take this opportunity to clarify our rules with respect to filing of notification applications under Section 90.693 to eliminate any possible confusion regarding the information to be provided by applicants regarding compliance with the Commission's short-spacing rules. Due to changes in filing procedures, such as the implementation of electronic filing, incumbent SMR licensees filing notification applications pursuant to Section 90.963 have not always been required to submit detailed short-spacing information in their applications so long as they certified compliance with the criteria set forth in Section 90.921(b)(4)-(6). We clarify, however, that incumbents who seek to establish short-spaced sites must include in their notification filings the same information traditionally required of all short-spacing applicants filing applications pursuant to Section 90.621(b). Therefore, notification must include a listing of all new or modified sites that are short-spaced in relation to co-channel stations of other licensees, and must indicate for each site whether the short-spacing is 70 to 55 miles or less than 55 miles. For sites in the 70-55 mile category, the incumbent must list all co-channel stations within 70 miles, and list the ERP and DHAAT of each co- channel station and of the incumbent's new or modified station. For sites short-spaced less than 55 miles, the incumbent must submit the engineering analysis required by Section 90.621(a)(4), and must serve a copy of the application on all affected co-channel licensees in accordance with the procedures set forth in Section 90.621(a)(4). 10. We also clarify that while notification applications filed pursuant to Section 90.693 are considered minor and are not subject to public notice or petition to deny procedures, any affected co-channel licensee may file objections if it believes a violation of the short-spacing rules has occurred. If we conclude that a licensee has violated the short-spacing rules, we will take action to remedy the violation, which may include modification or revocation of the improperly short-spaced authorization, and the imposition of fines, forfeitures, or other enforcement remedies if appropriate. IV. ORDERING CLAUSES 11. Accordingly, IT IS ORDERED that pursuant to Sections 4(i) and 309(d) of the Communications Act of 1934, as amended, 47 C.F.R. Sections 154(i) and 309(d), the petition to dismiss or deny filed by Dennis C. Brown and Robert H. Schwaninger, Jr., on June 22, 1998, IS DISMISSED. FEDERAL COMMUNICATIONS COMMISSION Gerald P. Vaughan Deputy Chief, Wireless Telecommunications Bureau